Certains pouvoirs du juge gestionnaire de l'instance

R. v. Felderhof, 2003 CanLII 37346 (ON CA)

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[57] I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other [page505] form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel's brief. However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution. That did not occur here. While some other judge might not have made the order that the trial judge did in this case and might very well have seen the merit of immediately proceeding with the omnibus document motion, I am not convinced that the trial judge's decision to do otherwise was a jurisdictional error. On my reading of the record, the ruling did not prevent the prosecutor from calling his case. I agree with the application judge's view (at para. 227) that deferring the documents motion did not "unfairly or irreparably" damage the position of the prosecution.

Le juge peut rejeter sommairement une requête en vertu de la Charte sous certaines circonstances

R. v. Snow, 2004 CanLII 34547 (ON CA)

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[51] Nor are we persuaded that the appellant suffered any prejudice from the fact that the trial judge failed to conduct a proper inquiry. First, it is abundantly clear from the remarks he made when dismissing the motion for a mistrial how the trial judge would have decided any inquiry on the basis of the evidence that was before him and that is now before us. The appellant made it clear at trial that he wanted the trial judge to conduct the inquiry. He did not resile from that position on appeal.

[52] Second, the appellant insisted on having the mistrial application heard one week after it was presented. The trial judge required that it be heard immediately and only dismissed the application after defence counsel refused to proceed. In our view, the trial judge was entitled to refuse to allow the appellant's serious allegations to cloud the trial for as long as a week. The appellant raised the point and, given the nature of the application, we can see no reason why he should not have been ready to proceed with it expeditiously. We would add, however, that had the appellant requested a reasonable delay to allow for proper preparation, it should have been granted.

[53] Third, the appellant has not attempted to supplement the record on appeal. We have already indicated the weaknesses in the appellant's affidavit. While the affidavit provided a sufficient basis to trigger an inquiry, certainly, it was far from compelling. Many of the appellant's allegations are based on observations he says he made from the dock in the courtroom. If that were the case, many others would have been aware of what was going on; yet, no objection was raised prior to the mistrial application and no other evidence was offered in support of the allegations. It is also noteworthy that the source given for three paragraphs (33, 42 [and] 43) was the defence counsel who was hardly reticent to complain about the trial judge's conduct; yet, he failed to object to these alleged improprieties at the time. It is significant that the appellant has not supplemented that record with any further evidence in this court. We are left with the trial record and all of its deficiencies. On the basis of that reco rd, we see no basis to interfere with the trial judge's summary determination that nothing improper occurred and that the mistrial application should be dismissed.

Il est de la responsabilité de la Cour de contrôler les procédures, y compris l'audition de requête présentée en vertu de la Charte

R. v. Bains, 2010 BCCA 178 (CanLII)

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[69]           There is no absolute right to a voir dire merely because an accused chooses to allege a Charter violation. An applicant must show that a voir dire is necessary and would assist the “proper trial of the real issues”. This threshold test was summarized by Chief Justice McEachern in Vukelich:

[26]      Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues.

[76]           As was noted in Vukelich, it is the responsibility of the trial judge to control the course of the proceedings. This involves the exercise of discretion for which this Court must show deference, absent an error in principle. I am not persuaded that the trial judge erred in principle in his application of the threshold test in Vukelich. I would not accede to this ground of appeal.

Il incombe au juge de déterminer la procédure devant être suivi quant à l'audition d'une requête présentée en vertu de la Charte

R .v. Hamill, 1984 CanLII 39 (BC CA)

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In those cases where the accused does apply to exclude the evidence, it will be for the trial judge to decide what procedure should be followed but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue. It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence.

Le but d'une requête en vertu de la Charte ne peut pas être exploratoire ou constituer une expédition de pêche

R. v. Sandham, 2009 CanLII 59687 (ON SC)

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[26]      In the Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (Ontario), May, 2006, at para. 278, the authors of the report state the following:

Pre-trial applications should not be fishing expeditions, with counsel seeking to find a Charter  violation.  Neither should they become “try-out camps” or “examinations for discovery” for witnesses’ evidence at trial.

[27]      Charron J., speaking for a unanimous court in R. v. Pieres; R. v. Lising, 2005 SCC 66 (CanLII), [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67 (at para. 34), adopted the comments of Finlayson J.A., in R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 72 C.C.C. (3d) 421 at 440 (Ont. C.A.), as to the need to restrict Charter motions to those where some basis for the violation of a right has been established:

The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to a jury to those which have, on the evidence, an air of reality to them.  Just as we have tried to restrict the trial of an accused on the merits to factual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter motions to matters of substance where defence counsel can establish some basis for a violation of a right.  Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice.  As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process.

[28]      No factual basis has been established to support the allegation that the Charter rights of Mr. Aravena have been infringed by reason of the manufacturing of evidence.  It is based on speculation and nothing more.  To call evidence and hold an “inquiry” would amount to a fishing expedition, the purpose of which would be to see if some evidence of a Charter violation could be found.  This court is not prepared to engage in that exercise.

Un juge doit contrôler les procédures afin d'assurer le caractère équitable de l'audition qui a lieu devant lui

R. v. Loveman, 1992 CanLII 2830 (ON CA)

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A trial judge must control the trial proceedings so as to ensure fairness to all concerned. In the exercise of this inherent power, a trial judge may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side. While a trial judge should be reluctant to foreclose an inquiry into an alleged Charter violation, there will be circumstances where no less severe an order will prevent unfairness.

In deciding how to proceed when faced with the Crown's objection, the trial judge had to balance various interests. He had to bear in mind an accused's right to raise constitutional objections to the admissibility of evidence and the Crown's right to have an adequate opportunity to meet Charter arguments made on behalf of an accused. In addition, the trial judge had to be concerned with the effective use of court resources and the expeditious determination of criminal matters. This latter factor was of particular concern in this case because there had already been some considerable delay (attributable to the appellant) in bringing the matter to trial.

In balancing those interests in this case, the trial judge should have considered the absence of any statutory rule or practice direction requiring notice, the notice that was given to the Crown, the point during the trial proceedings when the appellant's counsel first indicated he intended to seek exclusion under s. 24(2) of the Charter and the extent to which the Crown was prejudiced by the absence of any specific reference to a Charter-based argument in the notice given to the Crown. The trial judge also should have considered the specific nature of the Charter argument which counsel proposed to advance and the impact the application could have on the course of the trial.

This particular application would have had no effect on the course of the trial, save adding legal argument. This was not a case where the different onus arising in Charter applications need have had any effect on the manner in which the evidence was led. The evidence relevant to the Charter application was the same evidence which the Crown was obliged to lead in its effort to demonstrate compliance with the Criminal Code.

In my opinion, the trial judge did not properly balance the various interests. His ruling sacrificed entirely the appellant's right to advance a Charter-based argument. The other interests engaged did not require the order made by the trial judge. As Crown counsel suggested, there were other alternatives. The trial judge could have heard the entire case except the Crown's legal argument in reply to the Charter argument, and then, if necessary (and it may well not have been necessary), allowed Crown counsel a brief adjournment to prepare his response to the legal issues flowing from the Charter argument.

Comment apprécier la suffisance de la requête en regard d'un préjudice potentiel

R. v. Blom, 2002 CanLII 45026 (ON CA)

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[23] Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice:
does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.